United States v. Pruess

21 F. App'x 100

Opinion

OPINION

PER CURIAM.

Gregory R. Pruess seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2241 (1994) petition. The notice of appeal in this case was received in the district court more than sixty days after the entry of judgment. Fed. R.App. P. 4(a)(1)(B). However, the notice would be timely if Pruess’s pending post-judgment motion

* was filed “no later than 10 days ... after the judgment [was] entered.” Fed. R.App. P. 4(a)(4)(A). Under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the motion is considered filed as of the date Pruess delivered it to prison officials for forwarding to the court. The record does not conclusively reveal when Pruess delivered the motion for mailing to the court. Accordingly, we remand the case for the district court to obtain this information from the parties and determine the timeliness of the filing under Houston v. Lack and Rule 4(a)(4)(A). The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.

We note that the district court maintains jurisdiction to dispense with this motion under this court's holding in Fobian v. Storage Tech. Corp., 164 F.3d 887, 891 (4th Cir.1999).